Q&A: Texas gunman’s punishment spotlights military justice

By RICHARD LARDNERNovember 11, 2017

FILE - This undated file photo provided by the Texas Department of Public Safety shows Devin Patrick Kelley, the suspect in the shooting at First Baptist Church in Sutherland Springs, Texas, on Sunday, Nov. 5, 2017. Five years before Kelley opened fire on the Baptist church in Texas, killing more than two dozen people, the former Air Force airman faced a military jury after pleading guilty to choking his then-wife and cracking her son’s skull. His sentence: 12 months confinement and a bad conduct discharge.(Texas Department of Public Safety via AP, File)

WASHINGTON (AP) — Five years before Devin Patrick Kelley opened fire on a Baptist church in Texas, killing more than two dozen people, the former Air Force airman faced a military jury after pleading guilty to choking his then-wife and cracking her son’s skull. His sentence: 12 months confinement and a bad conduct discharge.

Kelly’s light punishment from the panel of officers and enlisted service members wasn’t unusual, despite the severity of his crime. Unlike their civilian counterparts, military judges and juries don’t use sentencing guidelines. The result is often widely disparate sentences for the same or similar offenses.

Service members who sit on military juries typically lack any legal experience, yet are expected to determine adequate punishments for defendants based on wide parameters set by the judge. They may be told, for example, that their options range from no punishment at all to multiple years of confinement and anything in between.

“They have no idea what they’re doing,” said retired Col. Don Christensen, who served as the Air Force’s chief prosecutor from 2010 to 2014 and also presided over 100 trials as a military judge. “So you have these head-scratchers.” Christensen is president of Protect Our Defenders, an advocacy group.

Questions and answers about key aspects of Kelley’s court-martial and the military justice system:

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Q: CAN PRETRIAL DEALS CUT PRISON TIME?

Yes. Christensen said the maximum prison sentence Kelley could have received was 30 months because of a pretrial agreement between him, his attorney and the Air Force general who oversaw his case.

Both the military and civilian court systems make use of plea deals before cases go to trial. Defendants are betting that by pleading guilty, they’ll get a lesser sentence than they would from a judge or jury. But military judges are not allowed to review the sentencing portion of a pretrial agreement before issuing their own sentence. And the defendant always gets the lesser punishment of the two.

In civilian courts, by contrast, the judge is privy to any pretrial agreement and has the final say. A judge could decide the agreed-upon sentence is too lenient and decide to impose a tougher one.

The difference between a pretrial agreement sentence and a military judge’s ruling can be dramatic. Army Staff Sgt. Casey West was sentenced in May by a judge to 56 years in prison for multiple counts of rape and sexual abuse of a child. But he won’t be behind bars for nearly that long, because a pretrial agreement capped his confinement at 15 years.

West will do even less time if he is eventually paroled. In the military justice system, convicted service members can be released from prison after serving one-third of their terms. Parole was eliminated for federal civilian defendants convicted of crimes after 1987.

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Q: DID THE JURY KNOW ABOUT KELLEY’S TROUBLED BACKGROUND?

No. When the military jury at Holloman Air Force Base sentenced Kelley in November 2012, they only knew he’d admitted to assaulting his wife and striking her child in the head.

They weren’t aware he’d also hit the child on the body, and on multiple occasions pointed a loaded and unloaded firearm at his wife, according to Kelley’s court-martial order. Kelley had pleaded not guilty to these other “specifications” — military parlance for an alleged criminal act — and they were withdrawn after he was arraigned.

The jury also likely didn’t know Kelley was caught trying to bring guns onto Holloman Air Force Base in New Mexico when he was stationed there, according to an El Paso, Texas, police report from June 2012. Or that he made death threats against superior officers, which also is mentioned in the police report.

All of this information and much more would have been available to federal civilian judges in the form of presentencing reports that they receive before deciding on a punishment.

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Q: IS THERE MORE TO KNOW ABOUT KELLEY’S COURT-MARTIAL?

Yes. The Air Force has so far released only a handful of pages from Kelley’s trial record. The service is planning to release more.

Typically, however, transparency in connection with military trial records is minimal. While all of the services make brief courts-martial results public, documents from the proceedings, such as the charges, courtroom transcripts and pretrial agreements, are available only through the federal open records law, the Freedom of Information Act. That’s a potentially time-consuming process and there are no assurances the requested documents will be released.

Conversely, records from most federal court cases are available online through the Public Access to Court Electronic Records system, known as PACER. PACER was established in 1988. Congress last year directed the Pentagon to create a comparable repository by 2020.

“What baffles me is why this is treated like putting a man on the moon,” Eugene Fidell, who teaches military justice at Yale Law School and is a practicing attorney, said of the military’s failure to keep pace. “It’s really one of the great mysteries to me.”